Halliburton Energy Services v. Denet Towing Services, Inc. , 178 F. App'x 427 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-30723
IN RE: In the Matter of the Complaint of DENET TOWING
SERVICES, INC., Individually and as owner of the Tug Lady
Melinda for Exoneration from or Limitation of Liability
--------------------------------------------
HALLIBURTON ENERGY SERVICES, doing business as Baroid
Drilling Fluids Inc. And Baroid Halliburton Company,
Plaintiff-Appellant
VERSUS
DENET TOWING SERVICES, INC., Individually and as owner of the
Tug Lady Melinda; NAVIGATORS INSURANCE COMPANY, through
Navigators Insurance Services of Texas, Inc.; WATER QUALITY
INSURANCE SYNDICATE, for itself and on behalf of all
subscribing insurance,
Defendants-Appellees
Appeal from the United States District Court
For the Eastern District of Louisiana
(2:03-CV-1582)
Before KING, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
1
This case arises from an accident on the Mississippi River
Gulf Outlet (“MRGO”) in New Orleans wherein a barge, owned by
Halliburton and being towed by a Denet Towing tug boat, suddenly
listed to port. The port bow of the barge submerged and seven of
eight large cargo tanks mounted to the deck of the barge broke free
and fell overboard.1 The barge “sprang back on the boat,” and
Captain Denet, the captain of the tug, then maneuvered the barge to
shore. Halliburton sued Denet Towing and various insurers for
damages under general maritime tort, contract, and cargo damage
law, and for cost of recovery and contribution under CERCLA.2
Halliburton alleged that Captain Denet, through negligent operation
of the tug, lost control of the barge and caused the tanks to break
loose or, alternatively, that Captain Denet negligently took the
unseaworthy barge under tow.3 Denet Towing argues that Halliburton
47.5.4.
1
The tanks contained a heavy metal called barite
in its bulk dry form and were later recovered from
thirty feet of water in the middle of the MRGO channel.
2
Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §§ 9601 et
seq., as amended.
3
Halliburton also alleged that Denet breached its
towage contract by failing to deliver the barge to its
original destination, Venice, Louisiana; and that Denet
breached a warranty of workmanlike service by failing
to supply a towing vessel and crew adequate to
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tendered an unseaworthy vessel for tow, and that the
unseaworthiness was caused by cracks and holes in the barge near
the waterline that were not apparent when the Denet Towing crew
conducted its visual inspection before leaving dock. The case was
heard before a judge sitting without a jury in a bifurcated trial.
The district court found for Denet Towing. Given the clear error
standard of review, we see no reason to overturn the district
court’s factual determination. See FED. R. CIV. P. 52(a).
Captain Denet and his crew testified that they inspected the
barge before departing from the Haliburton facility where it was
loaded, noticing only a slight list to port bow. Captain Denet
testified that at the time of the accident the tug and barge were
in the middle of the MRGO and did not hit anything, but that the
barge just suddenly listed to port and the tanks slid off the deck
as the barge “sprang back” on the tug.
Two Halliburton experts and two Denet Towing experts all
testified that the barge had cracks and wasted holes in the hull
which predated the accident. Denet Towing’s experts testified that
the cracks would not have been apparent upon normal inspection.
The Denet Towing experts, as well as both Halliburton experts,
differed in opinion as to what caused the accident. One
Halliburton expert noticed two recently incurred scrapes on the
performing the towage contract. It further argued
several insurance-related issues not before the court
on appeal.
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bottom of the vessel and opined that the barge ran aground.
Another Halliburton expert opined that the vessel hit debris as the
barge drifted toward shallow water, but could not have run aground
because it would have become stuck. The Denet experts opined that
the cracks and wasted holes allowed water to flow into two of the
barge’s compartments, causing the barge to lose stability. Both
Denet Towing experts testified about the shoreline of the MRGO in
the vicinity of the accident, which is solid rock extending
approximately thirty feet from the shoreline into the channel to a
depth of nine feet. Thus, both testified, if the barge had run
aground, the bottom of the barge would have sustained significant
damage; one expert testified that the barge would have sunk on the
spot. Both Denet Towing experts also agreed that given the post-
accident location of the extremely heavy cargo tanks, the accident
must have occurred in the middle of the MRGO channel.
The district court found the testimony of the Denet Towing
experts more credible. The district court also found that the cause
of the accident was the unseaworthiness of the barge before it left
the dock and that Captain Denet was not negligent either in taking
the vessel under tow, or in piloting the vessel down the MRGO in a
manner that caused the accident. We find no clear error in these
findings of fact.
In a towage contract, the towing vessel owes a duty to
exercise such reasonable care and maritime skill that prudent
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navigators employ in performing similar services. Tidewater Marine
Activities, Inc. v. Am. Towing Co., 437 F.2d 124, 130 (5th Cir.
1970). The Pennsylvania rule is “a presumption in admiralty law
that a statutory violation by a party to a collision is a cause of
the damage unless it is established that the violation could not
have caused or contributed to the collision.” American River
Transp. Co. v. Kavo Kaliakra SS, 148 F.3d 446, 449 (5th Cir.
1998)(citing The Steamship Pennsylvania v. Troop, 86 U.S. 125
(1873)). Halliburton argues that the district court misapplied the
Pennsylvania rule. We disagree.
At the time of the accident Captain Denet had been captain
for eighteen and one-half (18 ½) hours in the relevant twenty-four
(24) hour period, six (6) hours longer than allowed by regulation.
46 C.F.R. § 15.610. Denet also committed other regulatory
violations, including failing to have a second licenced operator on
board when a tug is operating more than twelve (12) hours in a
twenty-four (24) hour period. 46 C.F.R. § 15.610(a).
The district court found that the statutory violations were
unrelated to the cause of the accident, viz., the unseaworthiness
of the barge, and so the Pennsylvania burden shifting rule did not
apply. “As we have explained, the Supreme Court in The Pennsylvania
‘did not intend to establish a hard and fast rule that every vessel
guilty of a statutory fault has the burden of establishing that its
fault could not by any stretch of the imagination have had any
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causal relation to the collision, no matter how speculative,
improbable or remote.’” American River Transp., 148 F.3d at 450
(quoting Compania De Maderas De Caibarien, S.A. v. Queenston
Heights, 220 F.2d 120, 122-23 (5th Cir. 1955)). We find no error
in the trial court’s view of the relationship between the
Pennsylvania Rule and this case.
AFFIRMED.
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